Quality Psychological Servs. v Infinity Prop. & Cas. Co.

[*1] Quality Psychological Servs. v Infinity Prop. & Cas. Co. 2015 NY Slip Op 50645(U) Decided on April 29, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 29, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ.
570719/14

Quality Psychological Services a/a/o Dominant Green, Plaintiff-Respondent, - and

against

Infinity Property & Casualty Company Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Lizbeth Gonzalez, J.), entered June 11, 2012, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Lizbeth Gonzalez, J.), entered June 11, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary dismissal. While defendant-insurer submitted proof indicating that it properly rescinded the underlying insurance policy pursuant to Pennsylvania law based upon misrepresentations made by the insured, one Catrina Gordon, in the underlying policy application, defendant failed to demonstrate that plaintiff's assignor, who was injured in an accident involving the Gordon vehicle, was "not an innocent third party" who should be precluded from receiving protection under the policy (Delta Diagnostic Radiology, P.C. v Infinity Group, 43 Misc 3d 130[A], 2014 NY Slip Op 50602[U] [App Term, 2nd, 11th and 13th Jud Dists 2014] [interpreting Pennsylvania law]).

Defendant's argument that this action is barred by collateral estoppel - based upon a Pennsylvania court's order rescinding the underlying insurance policy ab initio - is improperly raised for the first time on appeal (see Gavin v Catron, 35 AD3d 354 [2006]). In any event, since plaintiff medical services provider was not a party to the Pennsylvania action, it is not bound by that court's determination, as it did not have a full and fair opportunity to contest the issues in that action (see Gilberg v Barbieri, 53 NY2d 285, 291 [1981]). Although plaintiff's assignor was a party to the Pennsylvania court action, defendant failed to show that plaintiff was in privity with its assignor at the time that action was commenced (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481, 486-487 [1979]; Ideal Med. Supply v Mercury Cas. Ins. Co., 39 Misc 3d 15 [2013]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: April 29, 2015